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24 August 2011

T-Series v. MySpace: First Reactions

The judgment of the Delhi High Court in the case of Super Cassettes Industries Ltd. v. Myspace Inc. & Another pronounced on July 29, 2011 was probably the first Indian judgment dealing with the subject of intermediary liability in the Indian context.

It's a long, detailed judgment. In a nutshell the facts are:

Users could upload music on MySpace. They happened to upload some music belonging to T-Series, which wasn't enthusiastic about having its music uploaded online without its permission.

T-Series and MySpace had a splotchy history. T-Series at one point suggested that MySpace obtain a licence from it -- it isn't clear from the judgment whether it wanted MySpace to obtain a licence for its entire repertoire for high licence fees or whether this was some form of limited licence. MySpace suggested that T-Series avail of its Rights Management Tool to prevent infringing music from being uploaded. T-Series rejected this suggestion. Etc.

The result was that the upload of infringing materials by users was not prevented at the threshold, and T-Series sued for the infringement of the copyright in its works. In its second prayer, it appeared to (non-explicitly) ask for an injunction against inducement to commit copyright infringement which is not generally recognised in the realm of Indian copyright law, and which was unusual in itself.

At any rate, it was held that MySpace had indeed committed copyright infringement. The Indian Law and Technology Blog dealt with the issues involved in the case in a detailed post (here).

There were several parts of the judgment which weren't immediately comprehensible (to my mind, at any rate) from a copyright perspective. Some of them have been discussed here. It should be mentioned though that the content of this post is speculative in many places, and that the suggested possible interpretations of the Copyright Act may not be generally accepted; the post merely attempts to explore possible alternative interpretations of the Indian copyright statute, and accepted copyright theory.

Tort Law Analogy

The decision seemed to repeatedly draw an analogy between tort law and copyright, and at one point spoke of the application of common law principles too, which didn't seem to be entirely consistent with the provisions of Section 16 of the Copyright Act, 1957, even though that Section isn't entirely clear in itself.

Authorisation

Under Section 14, in simple terms, copyright includes the right of the copyright owner to communicate a protected work which it owns to the public, or to authorise another person to do so.

As a general rule, direct infringement of copyright involves violating another person’s copyright oneself while indirect infringement involves contributing to or, possibly, being vicariously liable for infringement someone else (such as one’s employee) commits. Either fortunately or unfortunately, depending on one’s perspective, the Indian Copyright Act, 1957, contains no explicit provision relating to indirect copyright infringement.

As such, to say that indirect copyright infringement is an offence in India, it is generally necessary to read and interpret two Sections of the Copyright Act together: Section 51 (which defines “infringement”) and 14 (which defines the meaning of copyright).

Doing so, however, may result in an interpretation according to which “infringement by authorisation” is an offence. This may have been what led to the decision of the Delhi High Court repeatedly referring to MySpace having authorised infringement. In fact, it may be possible to infer that indirect infringement seems to have been equated with "infringement by authorisation" in the decision.

The problem with this is that jurisprudentially, "authorisation" implies authority / the right to ask that an act be committed. Without authority, authorisation can only be purported, not valid. As such, a person who does not own the copyright in a work — or have an appropriate licence — cannot ordinarily authorise the communication of a protected work. He may ask that a copy be made, but that only amounts to a request.

Considering this, it isn’t entirely clear what "infringement by authorisation" means. Paragraph 78(b) of the decision, however, states that the finding of infringement isn’t based on "authorisation", which appears to make the entire "authorisation" discussion redundant.

In any case, from a factual point of view, it is extremely unclear that MySpace authorised infringement; it merely seems to have enabled infringement since its website made it possible for users to engage in infringing activities.

As far as enabling infringement is concerned: Although a website is not a form of technology, it may be possible to draw parallels with the US Sony v. Universal case (also known as the Sony Betamax case) which clearly indicated that just because a technology made available the general public is capable of being used for infringing purposes, it does not automatically follow that its manufacturers would be guilty of infringement. Drawing an analogy, it should be possible to argue that just because a facility offered to the general public on a website is capable of being used for infringing purposes, the owner of the website would not automatically be guilty of infringement. In other words, enabling infringement cannot be equated with either contributing to infringement or being vicariously liable for infringement.

Safe Harbour

Indian copyright law does not contain an explicit safe harbour for intermediaries. However, Section 51(a)(ii) of the Copyright Act states that a person who permits a place to be used for the unauthorised communication of a specific protected work to the public, for profit, would not be guilty of infringement if (a) he was not aware of the infringement and (b) had no reasonable ground for believing that the communication of the work would be infringing. It could be argued that this Section applies only to specific, specified works: the Section refers to “the work” and not “a/any work”. As such, it should also be possible to argue that the Section does not make the mass infringement of unspecified works infringing. Further, considering the requirement of having a reasonable ground for believing that the communication would be infringing, it could also be argued that the apprehension that some part of a massive repertoire may be infringed would not bring any actual infringement under the scope of this Section (due to a lack of specificity).

Future Infringement and Remedies of Infringement

As far as remedies for infringement are concerned, Section 55 of the Copyright Act which deals with civil remedies speaks of actual infringement, and not possible infringement. The injunction granted in the decision, however, covers possible copyright infringement in addition to actual infringement. Although precedent may have established that it is possible to obtain an injunction against infringement anticipated on some solid basis, the validity of the grant of injunctions against possible infringement is unclear especially where the apprehension such infringement is based primarily on nothing more than the fact that users may tend to infringe copyright.

It is also interesting to note that Paragraph 47 of the judgment also seems to assume MySpace has “complete knowledge” of acts of infringement not yet committed, which is difficult to accept.

ToS Licence and a Review of Content

The licence contained in the MySpace Terms of Service allowing for the modification of user generated content seems to have been virtually equated with the ability of MySpace to review content at the time of upload, and it isn't entirely clear how or why parallels have been drawn between the two.

Nature of the Internet

And finally, of course, there are factual questions to be asked with regard to the very nature of intermediaries, the practicalities of checking for infringement at the threshold without any inputs from copyright owners, the value of social networking and the need to balance the rights of intermediaries (and consequently the freedoms granted to users/the public) against the protection of the rights of copyright holders.

While the decision is undoubtedly a victory for rights owners, it is unclear whether it also serves the interest of the general public. But then again, the decision is neither intended nor required to decide anything beyond the issues arising between the parties to the case.

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